140 Ky. 320 | Ky. Ct. App. | 1910
Affirming.
John T. Williams was a laborer on a night crew of men in the service of the Louisville Water Company. There were fifteen of sixteen men in the crew, engaged in digging a ditch in which a main was to be placed. According to the evidence for Williams, he was digging-down in the ditch, which was ten or twelve feet deep, and being wet and cold he came out to warm his hands at the fire which had been kindled under the kettle near by. While he was there warming, the foreman told him to go across the street and bring some buckets, and as he crossed the street to get the buckets at the command of the foreman, he fell into a manhole which had been opened while he was down in the pit, and had been left open without his knowledge. By the fall his shoulder blade was broken and he received other injuries for which he sued. On a trial of the case he recovered a verdict and judgment for $750.00. The Water Company appeals.
The main complaint on the appeal is that the verdict is palpably against the evidence. The foreman, Brown, testified that he opened the manhole to send some men down into it to turn off the water, this having become necesssary from its leaking into the pit they were digging; that when the top was removed from the manhole Williams and a man named Durham were standing there and he told them to watch the hole and not let anvbody fall into it; that not long after this, and while Williams was still standing there, he told Williams to get the buckets, and that in going for the buckets, Williams fell into the hole which Brown had told him to watch. Brown’s testimony is confirmed more or less by Durham, and by three or four other men in the gang, and there was no testimony as to Williams’ version of the matter except his own. The court bv his first instruction to the jury distinctly told them that if the plaintiff knew that the manhole was open, he could not recover, and by another instruction he predicated the plaintiff’s right to recover on the fact “that the uncovered condition of said manhole was unknown to the plaintiff.” So the finding of the jury is a finding- that Williams did not know that the manhole had been uncovered. The circuit court in an opinion which is a part of the record refused to disturb the verdict of the jury upon the ground that he was particularly impressed by the evident sincerity of
Complaint is made of the third instruction, but the issue in the case was so simple, and was so clearly stated to the jury by the instructions taken as a whole, that the jury could not have been misled. In the third instruction, the jury were told that they could not find for the plaintiff if he knew of the uncovered condition of the manhole.
Judgment affirmed.